Hahn v. Forest Hills Const. Co.

• Decision Date: 19 April 1960
• Docket Number: No. 30433,30433
• Citation: 334 S.W.2d 383
• Parties: Van R. HAHN, d/b/a Tornado Fencing & Supply Company (Plaintiff), Respondent, v. FOREST HILLS CONSTRUCTION COMPANY, a Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 383

334 S.W.2d 383

Van R. HAHN, d/b/a Tornado Fencing & Supply Company (Plaintiff), Respondent, v. FOREST HILLS CONSTRUCTION COMPANY, a Corporation (Defendant), Appellant.

No. 30433.

St. Louis Court of Appeals, Missouri.

April 19, 1960.

Motion for Rehearing or to Transfer to Supreme Court Denied

May 16, 1960.

Schurr and Inman, St. Louis, for appellant.

George D. Pittman, Jr., St. Louis, for respondent.

WOLFE, Presiding Judge.

This is an action for damages arising out of an alleged breach of contract. The suit was brought against both the Forest Hills Construction Company and R. M. Keeney, Jr., but the court directed a verdict in favor of R. M. Keeney. There was a verdict and judgment in favor of the plaintiff against defendant Forest Hills Construction Company in the sum of $2,184, and the defendant corporation has appealed.

The petition of the plaintiff alleged that the defendant had agreed in writing to employ the plaintiff to supply and erect a chain link fence in a subdivision known as Flordel, in St. Louis County. It was alleged that the fence was to be 9,400 feet long and that the defendant agreed to pay a total sum of $11.092 for the fence. It was further alleged that the plaintiff constructed 1,500 feet of the fence and that the defendant thereafter refused to permit him to continue with the construction, although he was ready, able, and willing to do so. The defendant's answer merely denied the allegations in relation to the contract.

The facts of the case as presented by the evidence revealed that the plaintiff, Van R. Hahn, was in the business of erecting fences. He had in his employ in April of 1957 two salesmen, Glen Hays and his brother Charles Hays. These two salesmen learned that R. M. Keeney was in charge of constructing a subdivision known as Flordel, in the City of Florissant, St. Louis County. There were ditches in the subdivision and the Hays brothers called on Mr. Keeney to find out if he intended to fence off the ditches. Keeney said that it was to be done and that he had received a bid for the work at a price of $1.21 per lineal foot. Glen Hays then asked Mr. Keeney if he would be interested in receiving a bid from the plaintiff, and Keeney said that he would. Keeney then told the salesmen that a Mr. Vatterott was developing some land adjoining his and that they were going together on some of the fencing necessary. He stated that he would need 9,400 feet of fencing. With this information the salesmen then returned to their place of employment and discussed the matter with Mr. Hahn. They were authorized to make a bid of $1.18 per foot. They then went back to Mr. Keeney and quoted him the price of $1.18 per foot, and according to Glen Hays: 'He said that if we could give him the fence for $1.18 per foot it was lower than the other bids he had and it was all right with him.'

Mr. Glen Hays a short time later again called on Mr. Keeney and presented him with an order form drawn up and setting out the type of fence and that it was to be 9,400 feet long. The order form also contained the following:

'This Fence to be erected by Tornado Fence Co. for the Forrest Construction Co. in Florland Subdivision. The material will be furnished and erected at the rate of $1.18 per foot. This rate for complete job of 9,400 feet, and same rate shall be granted for any additional footage. Erection to begin at time specified by Forrest Construction Co. weather permitting.

'40 percent of total cost to be paid on date job begins. Balance to be paid on completion of entire job.'

This was signed for the defendant by R. M. Keeney as president and by Glen Hays as representative of the Tornado Fencing & Supply Company, which was the name under which Hahn did business.

Hahn testified that about a month after the written agreement was signed, he received a telephone call from Mr. Kenney advising him that he was ready for the fencing. On May 23, 1957, Hahn started the construction of the fence and erected approximately 1,600 feet of it. He was obliged to stop construction then because the rest of the ground was not yet graded for fencing. Thereafter Hahn called Keeney from time to time, and each time that he phoned he was informed that no more ground was ready. In November, Hahn went out to the subdivision and found that the rest of the proposed fencing had been erected by a company named All-American Fencing Company. Hahn said that Keeney informed him that he got the fence from this company at a cheaper price.

The fence that Hahn actually installed was paid for, and this suit is for the profit Hahn would have made upon the construction of the remaining footage. He testified as to the cost of material and labor connected with the erection of a fence of the length specified. No question is raised as to the amount of the judgment, so it is unnecessary to set out such evidence.

The defendant filed a motion for a directed verdict at the close of the plaintiff's case. The court overruled the motion and the defendant offered no evidence but stood upon the motion.

Appellant asserts that the court erred in overruling his motion for a directed verdict at the close of the plaintiff's case. It is...